More Questions About Addressing Digital Discrimination
Tuesday, January 3, 2023
More Questions About Addressing Digital Discrimination
"In the very first sentence of the Communications Act, Congress directs the Federal Communications Commission to help make communications services available to 'all the people of the United States … without discrimination on the basis of race, color, religion, national origin, or sex.' This language is not new. But it is time to address it with new urgency."
In one of the provisions of the massive Infrastructure Investment and Jobs Act, Congress articulates the policy of the United State that 1) subscribers should benefit from equal access to broadband internet access service within the service area of a provider of such service, 2) "equal access" means the equal opportunity to subscribe to an offered service that provides comparable speeds, capacities, latency, and other quality of service metrics in a given area, for comparable terms and conditions; and 3) the Federal Communications Commission (FCC) should take steps to ensure that all people of the United States benefit from equal access to broadband internet access service.
Congress gave the FCC two years to adopt rules to facilitate equal access to broadband internet access service including 1) preventing digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin and 2) identifying necessary steps to eliminate discrimination.
On December 21, 2022, the FCC adopted a Notice of Proposed Rulemaking (NPRM) in which it seeks to identify and address the harms experienced by historically excluded and marginalized communities; provide a grounding for meaningful policy reforms and systems improvements; and establish a framework for collaborative action to promote and facilitate digital opportunity for everyone. Below we provide some context and highlight the major questions the FCC is asking the public to comment on. Those comments will be due at the FCC during the first quarter of 2023. [Update: Comments are due on or before February 21, 2023, and reply comments are due on or before March 21, 2023.]
Evidence of Unequal Access
Recent research demonstrates how people in the U.S. do not have equal access to comparable broadband services:
- There have been numerous instances of unequal broadband investment by service providers in communities across the nation, including Dallas, Detroit, Oakland, Kansas City, Nashville, and Atlanta.
- The Communications Workers of America and the National Digital Inclusion Alliance found AT&T prioritizes network upgrades to wealthier areas, leaving lower-income communities with outdated technologies like DSL.
- In 2016, Free Press explored the impact of systemic racial discrimination on home internet adoption.
- An investigation by The Markup found that AT&T, Verizon, EarthLink, and CenturyLink disproportionately offered lower-income and least-White neighborhoods slow internet service for the same price as speedy connections they offered in other parts of town.
- Digital Equity Los Angeles research found a clear and consistent pattern of the dominant broadband provider reserving its best offers—high speed at low cost—for the wealthiest neighborhoods in Los Angeles County. People who live in higher poverty neighborhoods there are not only routinely offered slower service at higher prices, but are offered contracts with worse terms and conditions.
The FCC's Role in Eliminating Discrimination
This is not the first time Congress has charged the FCC with addressing discrimination.
- In the Communications Act of 1934, Congress' core purpose of the FCC is "to make available, so far as possible," a "rapid, efficient, Nation-wide" wire and radio communication service with adequate facilities "to all of the people of the United States." In the Telecommunications Act of 1996, Congress updated that purpose by adding what it called the Nondiscrimination Principle—"without discrimination on the basis of race, color, religion, national origin, or sex"—and applying the principle to all entities covered by the Communications Act.
- The Communications Act also includes the authority to prohibit unjust or unreasonable discrimination by common carriers in charges, practices, classifications, or regulations in connection with like communications services ... "or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage."
- Local cable franchise authorities are required to "assure that access to cable service is not denied to any group of potential residential cable subscribers because of the income of the residents of the local area."
- The Telecommunications Act of 1996 includes provisions to promote access to telecommunications and information services, including broadband, for "[c]onsumers in all regions of the Nation, including low-income consumers and those in rural, insular, and high cost areas," services that are "reasonably comparable to those services provided in urban areas and that are available at rates that are reasonably comparable to rates charged for similar services in urban areas."
- The 1996 law also requires the FCC to conduct regular inquiries as to whether "advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion."
With the evidence that unequal access to broadband is all-too-frequent, the Infrastructure Investment and Jobs Act further empowers the FCC to address these shortcomings.
Equal Access is a Top Priority for the FCC
"Equal access to broadband," the FCC states, "should be the lived reality for every person in the United States. Digital opportunity should be available to everyone. Who you are or where you live should not determine your digital destiny. This is why the FCC is working to create rules and policies to combat and prevent digital discrimination, and to promote equal access to broadband across the country, regardless of zip code, income level, ethnicity, race, religion, or national origin."
The FCC highlights the goal of equal access in recent policy statements.
In March 2022, the FCC released its Strategic Plan for Fiscal Years 2022-2026 with six strategic goals including:
- Pursue a “100 Percent” Broadband Policy: In response to the COVID-19 pandemic and the challenges that many Americans face, the FCC should advance access to communications that are essential for Americans to work remotely, learn remotely, receive healthcare, and engage in commerce. To this end, the FCC will pursue policies to help bring affordable, reliable, high-speed broadband to 100 percent of the country.
- Promote Diversity, Equity, Inclusion and Accessibility: The FCC will seek to gain a deeper understanding of how the agency’s rules, policies, and programs may promote or inhibit advances in diversity, equity, inclusion, and accessibility. The FCC will pursue focused action and investments to eliminate historical, systemic, and structural barriers that perpetuate disadvantaged or underserved individuals and communities. In so doing, the FCC will work to ensure equitable and inclusive access and facilitate the ability of underserved individuals and communities to leverage and benefit from the wide range of opportunities made possible by digital technologies, media, communication services, and next-generation networks. In addition, the FCC recognizes that it is more effective when its workforce reflects the experience, judgment, and input of individuals from many different backgrounds. Advancing equity is core to the agency’s management and policymaking processes and will benefit all Americans.
- Empower Consumers: Consumers who are well-informed about their rights and what they’re buying are more confident and more likely to participate in the digital economy. The FCC will tackle new challenges to consumer rights and opportunities stemming from the COVID-19 pandemic, plans for post-COVID recovery, and digital transitions. The FCC also will pursue effective enforcement and new approaches to protect consumers from unwanted and intrusive communications, phone-based scams, telephone privacy issues, and other trends that affect consumers. The FCC will work to enhance competition and pursue policies that protect the competitive process to improve consumer choice and access to information. The FCC will work to foster a regulatory landscape that fosters media competition, diversity, and localism. The FCC also must work to ensure the availability of quality, functionally equivalent communications services for persons with disabilities.
The Infrastructure Investment and Jobs Act digital discrimination provision provides the FCC with a new tool to achieve these goals.
Steps to Ensure that All People of the United States Benefit from Equal Access to Broadband
In its new proceeding, the FCC is asking for input on five issues: I) Defining "Digital Discrimination of Access," II) Revising its Informal Consumer Complaint Process, III) Rules Prohibiting Digital Discrimination of Access, IV) State and Local Model Policies and Best Practices, and V) Additional Efforts to Promote Digital Equity and Inclusion.
I. Defining “Digital Discrimination of Access”
1. Effect vs Intent
The FCC proposes to adopt a definition of “digital discrimination of access” that encompasses actions or omissions by a provider that differentially impact consumers’ access to broadband internet access service, and where the actions or omissions are not justified on grounds of technical and/or economic infeasibility. And the FCC asks if this definitional approach should depend on whether, and for what reason(s), the provider intended to discriminate on the basis of a protected characteristic.
The FCC proposes to define “digital discrimination of access" as one or a combination of the following:
(1) "policies or practices, not justified by genuine issues of technical or economic feasibility, that differentially impact consumers’ access to broadband internet access service based on their income level, race, ethnicity, color, religion, or national origin"; and/or
(2) "policies or practices, not justified by genuine issues of technical or economic feasibility, that are intended to differentially impact consumers’ access to broadband internet access service based on their income level, race, ethnicity, color, religion, or national origin."
As the way the two parts of the definition are written may imply, the FCC seeks comment on whether to adopt the definition of digital discrimination based on disparate impact (i.e., discriminatory effect), disparate treatment (i.e., discriminatory intent), or both.
Public interest groups—including the American Foundation for the Blind, Black Women’s Roundtable, the Multicultural Media, Telecom and Internet Council, and Public Knowledge—urge the FCC to define digital discrimination based on disparate impact and argue that this is the only way to create an effective prohibition that captures discrimination as it happens in the real world. On the other hand, industry-related groups ACA Connects, AT&T, and the Wireless Internet Service Providers Association favor a definition requiring disparate treatment.
2. Scope of the Definition
The FCC also seeks input on what services, entities, and practices should be within the scope of the definition; how and on what bases should the FCC understand policies and practices to be justified by technical and economic considerations; who can be subject to digital discrimination; and how it should determine when digital discrimination has occurred. Specifically, the FCC asks:
What services are consumers using if and when they encounter “policies or practices. . . that differentially impact [their] access to broadband internet access service”? The FCC proposes to limit its focus to broadband internet access service. Does the FCC's definition of “broadband internet access service” capture the appropriate scope of technologies? Should it, at minimum, include services it finds to provide the functional equivalent of broadband internet access service?
Whose "policies or practices . . . that differentially impact consumers' access to broadband internet access service" should be covered by the FCC's definition? Can entities other than broadband providers engage in or contribute to digital discrimination of access?
What "policies or practices . . . differentially impact consumers’ access to broadband internet access service"? Can practices and policies related to certain terms and conditions of service, such as those concerning speeds, data caps, throttling, late fees, equipment rentals and installation, contract renewal or termination, customer credit or account history, promotional rates, or price, constitute or lead to digital discrimination? The law defines “equal access” with reference to “comparable speeds, capacities, latency, and other quality of service metrics” and “comparable terms and conditions"; does this language give the FCC discretion to include any practices that relate to the quality of service, including non-technical aspects of service, such as customer service, marketing or advertising, or terms and conditions related to contract renewal, account history, or price?
How should the FCC's definition "tak[e] into account" justifications on the basis of technical and economic feasibility? In what circumstances is a differential impact on consumers’ access to broadband “justified by genuine issues of technical or economic feasibility”? Should the FCC adopt safe harbors, establish a case-by-case standard for infeasibility, or both?
Whose experience of a "differential impact [on]. . . access to broadband internet access service,” whether intended or not, is the focus here? Should the FCC understand digital discrimination of access to be a problem experienced by individuals or communities, or both? In the proposed definition, the FCC includes the same characteristics as bases for discrimination as those identified in the law. The FCC seeks comment on how to give meaning to these characteristics and whether to include any additional characteristics. Is the meaning of some or all of these terms sufficiently established such that the FCC does not need to give them further meaning? Even if their meaning is established, would it promote certainty to adopt further definitions or explanations consistent with other laws or precedents? Since Congress said the FCC "should take steps to ensure that all people of the United States benefit from equal access to broadband internet access service," can the FCC take action to address inequities faced by those with unlisted characteristics?
When is consumers’ access to broadband internet access service “differentially impact[ed]” by policies or practices, whether intentionally or not? How should the FCC compare services, terms, and conditions to make this determination? (This question includes the geographic area the FCC should compare across and data sources it should look to in making this determination.) Should the FCC understand “equal access” and “discrimination of access” to focus on the availability of broadband, adoption of broadband, quality of broadband, or some combination of these factors? Are there other factors it should consider? Should the FCC simply compare network performance metrics, and if so, at what threshold would it determine that performance was meaningfully better or worse for certain consumers?
II. The FCC's Informal Consumer Complaint Process
The FCC proposes to revise its consumer complaint process to (1) add a dedicated pathway for digital discrimination of access complaints; (2) collect voluntary demographic information from filers who submit digital discrimination of access complaints; and (3) establish a clear pathway for organizations to submit digital discrimination of access complaints. The commission also proposes to make anonymized complaint data available to the public through the FCC’s Consumer Complaint Data Center to inform third-party analyses. The FCC seeks comment on these proposals.
III. Rules Prohibiting Digital Discrimination of Access
The FCC seeks comment on the rules it should adopt to fulfill the Congressional mandate. Specifically, the FCC seeks comment on whether it should 1) adopt a broad prohibition of digital discrimination of access and if so, how to structure and enforce it; 2) place affirmative obligations on broadband providers; and 3) take action in other proceedings that bear on or relate to addressing digital discrimination.
1. Broad Prohibition
The FCC seeks comment on whether it should adopt a broad prohibition on digital discrimination of access, and how to structure and enforce such a prohibition. Should the FCC accompany any broad prohibition with specific, enumerated prohibited practices? If the FCC publishes a list of prohibited practices considered examples of digital discrimination, what practices should be included? How can the FCC address claims of digital discrimination of access under any broad prohibitions?
a. Analytical Framework
The FCC seeks comment on the analytical framework it should use for claims of digital discrimination of access under disparate impact and disparate treatment prohibitions.
Disparate Impact Framework. Courts have generally used a three-part test to determine whether a facially neutral policy or practice discriminates against members of protected groups under civil rights statutes:
- First, the complainant must establish a prima facie case (i.e. establish a legally required rebuttable presumption) of discrimination, for our purposes here, by a broadband provider by proving that the provider's practice or policy causes a disproportionate, adverse impact on a group determined by reference to a protected characteristic.
- Then the burden shifts to the broadband provider to establish a substantial, legitimate justification for the challenged practice or policy.
- Finally, where the broadband provider shows a substantial, legitimate justification, the complainant can still prevail on the claim by demonstrating the existence of an available, alternative practice or policy that would achieve the same legitimate objective but with less discriminatory effect.
Should the FCC adopt this kind of framework? What specifically should the FCC require at each step of the analysis? How would a provider show that it had a substantial legitimate justification for its policy or practice?
Disparate Treatment Framework. In general, courts have used several analytical frameworks to evaluate claims of intentional discrimination—again for our purposes here—by a broadband provider. One example is what's called the McDonnell Douglas framework. Under that framework, a claim of discrimination proceeds through three steps:
- The plaintiff proves a prima facie case of discrimination by typically showing that they are a member of a protected group, were eligible for a service, were denied or otherwise treated in an adverse manner, and that a similarly situated individual who is not a member of the protected group was treated better;
- The burden then shifts to the broadband provider to articulate a legitimate, nondiscriminatory reason for the challenged practice or action; and
- If the broadband provider meets the burden to provide a legitimate, non-discriminatory reason, the burden shifts back to the plaintiff to demonstrate that this reason is a pretext for discrimination.
If the FCC adopts a burden-shifting framework similar to McDonnell Douglas, what specifically would it require at each step of the analysis? What types of evidence should it consider sufficient to demonstrate discriminatory intent? Should a provider be permitted to defend a claim of income-based intentional discrimination by offering projections showing that deploying to a particular community would likely produce a lower-than-normal rate of return on investment?
The FCC seeks comment on the most effective framework for enforcing a broad prohibition on digital discrimination. Should the FCC rely on the standard FCC enforcement model, establish a complaint system, or enable or empower third parties to enforce the rules we adopt, and on the scope of our authority to adopt each approach?
FCC Enforcement. Current FCC enforcement tools include letters of inquiry, notices of apparent liability, and forfeiture orders. Are these tools appropriate and sufficient for enforcing claims of digital discrimination of access? The FCC also seeks comment on the punishments or remedies the commission could impose and award as part of its enforcement of rules prohibiting digital discrimination of access. The FCC particularly seeks comment on its authority to address violations of any rules prohibiting digital discrimination of access. Could the FCC bar offending providers from participating in funding programs or find that violations of rules raise character qualification issues?
Structured Complaint Process. The FCC seeks comment on whether it should establish a structured process for adjudicating formal complaints alleging violations of any digital discrimination rules—and how to design that process. Should a structured complaint process provide parties with the flexibility to choose between two systems—informal and formal? Should the FCC authorize an expert within the commission to review and investigate complaints and vest such expert with the authority to dismiss the complaint or issue a “non-binding probable cause determination letter?
State and Local Enforcement. The FCC also seeks comment on what processes its rules could include for enforcement by state and local officials, and by private right of action. Should the FCC encourage states and localities to adopt and independently enforce rules that are substantively similar to those the FCC adopts? Does the FCC have the authority to create rights that private parties could enforce or prosecute before state and local governmental bodies or in the courts?
The FCC seeks comment on what obligations it could place on providers to address digital discrimination of access including these proposals:
- Microsoft proposes broadband providers use FCC data to formulate plans to address digital discrimination of access. The FCC could require providers to submit these plans before enacting any other rules of its own—as both the FCC and industry lack sufficient data on issues regarding digital discrimination.
- The Leadership Conference on Civil and Human Rights proposes that the FCC adopt rules mirroring a provision of the Fair Housing Act that requires United States Department of Housing and Urban Development (HUD) grantees to affirmatively further fair housing. HUD grantees must not only abide by HUD rules on fair housing, but also generally promote equity in housing, although HUD “does not require any specific form of planning or submission of fair housing plans to HUD. The Leadership Conference argues that the FCC could require providers to do the same with respect to combating digital discrimination.
- TURN proposes that information about programs that subsidize the cost of broadband should be disseminated to consumers by providers. TURN also proposes that providers distribute public safety information regarding “outages, the need for backup power, [and] emergency phone numbers,” particularly in low-income areas and those subject to natural disasters. Additionally, TURN and others contend that providers should offer information about how to seek redress if a consumer believes that they have experienced digital discrimination of access.
3. Other Proceedings
What other actions could the FCC take to address digital discrimination of access? Proposals include addressing state and local laws that may impact infrastructure deployment, spectrum policy, and municipal broadband.
The FCC is particularly interested in what's called "multiple tenant environments" (you may know them as apartment buildings and offices). In those buildings there are issues such as conflicts over access to inside wiring, insufficient infrastructure for high-speed broadband, and exclusive rooftop access agreements. There are also concerns that these buildings' owners can profit by restricting tenants’ broadband options and reducing competition. The FCC asks if it should address some or all of these issues to combat digital discrimination of access.
The FCC also asks about money: could it use its funding programs to combat digital discrimination of access? AT&T argues that the Infrastructure Investment and Jobs Act primarily concerns spending and Congress’ directive to facilitate equal access, read in this context, primarily represents a funding commitment. Should FCC funding efforts be tied to preventing and eliminating digital discrimination? Should existing funding programs be revised in any way to ensure they do not perpetuate existing inequities? Should receipt of funds be contingent on compliance with antidiscrimination requirements? Should the FCC coordinate with other agencies to ensure such requirements apply to other federal funding programs, including the National Telecommunications and Information Administration’s Broadband Equity, Access, and Deployment Program?
4. Additional Proposals
The FCC seeks comment on other proposals such as assisting those on Tribal lands, undertaking outreach efforts to promote awareness of any digital discrimination rules, and making organizational changes to the FCC.
Tribal Lands. The FCC seeks comment on any actions it can take to address digital discrimination of access on Tribal lands. In what specific ways do those living on Tribal lands uniquely experience digital discrimination of access? Is dedicated action necessary to address those issues, or can they be addressed by more general rules addressing digital discrimination of access?
Outreach. How can the FCC address digital discrimination through outreach efforts including educational efforts to promote digital literacy, including developing a digital literacy program to raise awareness of the benefits and availability of broadband?
FCC (Re)Organization. What organizational changes could the FCC make to address digital discrimination of access and assist in enforcement? The Leadership Conference on Civil and Human Rights suggests hiring staff with experience in discrimination law. Public Knowledge suggests establishing a dedicated ombudsperson. A number of organizations have suggested creating an FCC Office of Civil Rights. What would be the benefits of establishing an ombudsperson for digital discrimination, and what specific responsibilities should they have? Would it be useful to house an ombudsperson, and any FCC staff with expertise on discrimination issues, in an Office of Civil Rights? Would establishing a new organizational unit be preferable to distributing this expertise among the FCC’s current bureaus and offices? What issues would an Office of Civil Rights oversee? What would be the scope of its authority and responsibilities, and how would it relate to existing organizational units such as the FCC's Office of Native Affairs and Policy?
5. Legal Authority
Four enduring values have always informed communications law—public safety, universal service, competition, and consumer protection. The values are interdependent and mutually reinforcing. As noted above and as Public Knowledge highlights, the FCC has a long history under the Communications Act of ensuring universal access to communications services regardless of race, gender, income, or rural residence. So should the FCC understand its authority under the Infrastructure Investment and Jobs Act as a “civil rights” statute or a “universal service” statute, and what is the significance of either interpretation?
The FCC seeks comment on the scope of its authority to adopt digital discrimination rules. Since the Infrastructure Investment and Jobs Act gives the FCC broad direction to “adopt final rules to facilitate equal access to broadband. . . including” addressing digital discrimination of access, can the commission adopt rules to facilitate equal access that address issues other than, but related to, digital discrimination of access? If so, what issues does the FCC have the authority to address?
The FCC notes that Congress directs the commission to both prevent and eliminate digital discrimination. Does the word “prevent” give the FCC broad discretion to adopt prophylactic measures to stop digital discrimination of access from occurring going forward? What are the bounds of that authority? How does that authority differ from a more standard prohibition on discriminatory conduct or outcomes? What does the word “eliminate” offer? Does it give the FC discretion to address digital discrimination of access that already exists? Is there a distinction between addressing currently existing digital discrimination of access and imposing “retroactive liability”? Does the statutory language that the FCC should “identify necessary steps . . . to eliminate [digital] discrimination” in any way guide how to understand this direction? Did Congress intend for the FCC to merely identify steps, and not take them?
State and Local Model Policies and Best Practices
On November 7, 2022, the FCC's Communications Equity and Diversity Council submitted Recommendations and Best Practices to Prevent Digital Discrimination and Promote Digital Equity, a report on the council's near-year-long effort to: (a) examine issues around lack of access to broadband services and products; (b) help better understand the reasons and causes for such lack of access; and (c) offer recommendations for addressing digital discrimination and other barriers that impact equitable access to emerging technology in the U.S., including its territories, particularly in communities that remain unserved, underserved or “under-connected.” The report outlines six model policies and best practices for states and localities:
- developing and making available recurring “broadband equity assessments";
- facilitating awareness among landlords regarding “tenant choice and competition” in multiple tenant environments;
- identifying ways to “incentivize equitable deployment”;
- managing public property (such as rights-of-way) “to avert discriminatory behaviors that result in or sustain digital discrimination and redlining”;
- convening regular meetings of stakeholders to evaluate “areas and households unserved and underserved with competitive and quality broadband options”; and
- encouraging “fair competition and choice.”
The FCC seeks comment on its proposal to adopt, as guidelines for states and localities, the council's recommendations.
In addition, the FCC seeks comment on its proposal to adopt the report's 13 model policies and best practices for states and localities to advance digital equity, which, in sum, recommend:
- raising awareness about and streamlining the application process for government benefit programs such as the Affordable Connectivity Program;
- promoting digital literacy; and
- increasing access to devices and spaces to access the internet.
Timeline on Digital Discrimination Efforts
The FCC released its NPRM on the prevention and elimination of digital discrimination on December 22, 2022. After the NPRM is published in the Federal Register, the public will have 30 days to submit comments and 60 days to file reply comments.
In a statement, FCC Chairwoman Jessica Rosenworcel said, "Getting to final rules next year will require more engagement, more collaboration, and more work. The input we have received thus far from stakeholders is an awfully good start. But to get this right, we still need more input and ideas because we can’t reach our goal of connecting everyone, everywhere unless we eliminate digital discrimination."
Similarly, FCC Commissioner Geoffrey Starks said, "Input from all stakeholders is absolutely critical. I urge interested parties to continue to engage with us and FCC staff to help us make the right policy decisions to protect consumers."
By law, the FCC must adopt rules to facilitate equal access to broadband internet access service by November 15, 2023.
See Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, 135 Stat. 429, § 60506 (2021) (codified at 47 U.S.C. § 1754)
The FCC defines "broadband internet access service" as a mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up internet access service.
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